{"id":302502,"date":"2023-09-27T15:30:18","date_gmt":"2023-09-27T10:00:18","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=302502"},"modified":"2023-10-16T10:55:17","modified_gmt":"2023-10-16T05:25:17","slug":"sc-iaf-army-pay-rs-1-55-crore-to-veteran-infected-with-hiv-medical-negligence","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/09\/27\/sc-iaf-army-pay-rs-1-55-crore-to-veteran-infected-with-hiv-medical-negligence\/","title":{"rendered":"SC orders IAF, Army to pay Rs. 1.55 Crore to Veteran infected with HIV after blood transfusion at Military hospital; Centre and States to issue HIV\/AIDS guidelines, welfare schemes"},"content":{"rendered":"
\n

Supreme Court<\/span>: In a case where a radar operative\/technician with the Indian Air Force (IAF) tested HIV positive after receiving a transfusion of virus-infected blood at a Military Hospital, the bench of S. Ravindra Bhat<\/span> and Dipankar Datta, JJ has issued a series of directions to the Central and State Governments to frame guidelines relating to diagnostic facilities, Antiretroviral therapy and opportunistic Infection Management, and welfare schemes for the people affected by HIV\/AIDS.<\/p>\n

Directions<\/h3>\n
    \n
  1. \n

    Under Section 14 (1) of the HIV Act, the measures to be taken by the Central Government and all the State Government are, to provide, (as far as possible), diagnostic facilities relating to HIV or AIDS, Antiretroviral therapy and Opportunistic Infection Management to people living with HIV or AIDS.<\/p>\n<\/li>\n

  2. \n

    The Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to diagnostic facilities, Antiretroviral therapy and opportunistic Infection Management applicable to all persons and shall ensure their wide dissemination at the earliest, after consultation with all the concerned experts, particularly immunologists and those involved in community medicine, as well as experts dealing with HIV and AIDS prevention and cure. These measures and guidelines shall be issued within three months, and widely disseminated, in the electronic media, print media and all popularly accessed public websites.<\/p>\n<\/li>\n

  3. \n

    Under Section 15 (1) & (2) of the HIV Act, the Central government and every State Government shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS. Both the Central and State Governments shall frame schemes to address the needs of all protected persons.<\/p>\n<\/li>\n

  4. \n

    Under Section 16 (1) of the HIV Act, the Central and all the State Governments, shall take appropriate steps to protect the property of children affected by HIV or AIDS. By reason of Section 16 (2) of the HIV Act, the parents or guardians of children affected by HIV and AIDS, or any person acting for protecting their interest, or a child affected by HIV and AIDS may approach the Child Welfare Committee [within the meaning of that expression under Section 29<\/a> of the Juvenile Justice (Care and Protection of Children) Act, 2000<\/a>] for the safe keeping and deposit of documents related to the property rights of such child or to make complaints relating to such child being dispossessed or actual dispossession or trespass into such child’s house.<\/p>\n<\/li>\n

  5. \n

    The Central and every State Government shall formulate HIV and AIDS related information, education and communication programmes which are age-appropriate, gender-sensitive, non-stigmatising and nondiscriminatory.<\/p>\n<\/li>\n

  6. \n

    The Central Government shall formulate guidelines [under Section 18(1) of the HIV Act] for care, support and treatment of children infected with HIV or AIDS; in particular, having regard to Section 18 (2) “notwithstanding anything contained in any other law for the time being in force”, the Central Government, or the State governments shall take active measures to counsel and provide information regarding the outcome of pregnancy and HIV- related treatment to the HIV infected women. The Central Government shall also notify HIV and AIDS policy for establishments in terms of Section 12 of the HIV Act.<\/p>\n<\/li>\n

  7. \n

    It is further directed that under Section 19 of the HIV Act, every establishment, engaged in the healthcare services and every such other establishment where there is a significant risk of occupational exposure to HIV, for the purpose of ensuring safe working environment, shall (i) provide, in accordance with the guidelines, firstly, universal precautions to all persons working in such establishment who may be occupationally exposed to HIV; and secondly training for the use of such universal precautions; thirdly post exposure prophylaxis to all persons working in such establishment who may be occupationally exposed to HIV or AIDS; and (ii) inform and educate all persons working in the establishment of the availability of universal precautions and post exposure prophylaxis.<\/p>\n<\/li>\n

  8. \n

    By reason of Section 20 (1) of the HIV Act, the provisions of Chapter VIII of the HIV Act apply to all establishments consisting of one hundred or more persons, whether as an employee or officer or member or director or trustee or manager, as the case may be. In keeping with proviso to Section 20 (1) of the HIV Act, in the case of healthcare establishments, the said provision shall have the effect as if for the words “one hundred or more”, the words “twenty or more” were substituted.<\/p>\n<\/li>\n

  9. \n

    Every person who is in charge of an establishment, mentioned in Section 20 (1) of the HIV Act, for the conduct of the activities of such establishment, shall ensure compliance of the provisions of the HIV Act.<\/p>\n<\/li>\n

  10. \n

    Every establishment referred to in Section 20 (1) of the HIV Act has to designate someone, as the Complaints Officer who shall dispose of complaints of violations of the provisions of the HIV Act in the establishment, in such manner and within such time as may be prescribed. The rules in this regard may be formulated by the Central Government at the earliest, preferably within 8 weeks.<\/p>\n<\/li>\n

  11. \n

    The Secretary, Department of Labour of every state shall ensure the collection of information and data relating to compliance with Sections 19 and 20 of the HIV Act, in regard to designation of a complaint officer, in all the factories, industrial establishments, commercial establishments, shops, plantations, commercial offices, professional organizations, and all other bodies falling within the definition of “establishments” under Section 2 (f) of the HIV Act i.e. a body corporate or co-operative society or any organisation or institution or two or more persons jointly carrying out a systematic activity for a period of twelve months or more at one or more places for consideration or otherwise, for the production, supply or distribution of goods or services. Such information shall be forwarded to the Secretary, Union Ministry of Labour and Employment, within 10 weeks. The Union Labour and Employment Secretary shall file an affidavit of compliance containing a tabular statement, with respect to implementation of provisions of the Act, within 16 weeks.<\/p>\n<\/li>\n

  12. \n

    Every court, quasi-judicial body, including all tribunals, commissions, forums, etc., discharging judicial functions set up under central and state enactments and those set up under various central and state laws to resolve disputes shall take active measures, to comply with provisions of Section 34 of the HIV Act. Chief Justices of all High Courts, shall compile information, and device methods of collecting information in that regard, anonymizing identity of persons affected, appropriately and also complying with provisions of Section 34 (2) of the HIV Act. The Registrar General of the Supreme Court shall also look into the matter, and frame relevant guidelines which, after approval be issued and implemented.<\/p>\n<\/li>\n<\/ol>\n

    The case that led to the aforementioned directions<\/h3>\n

    In the case at hand, the appellant, a radar operative\/technician with the IAF, was deployed at the Indo-Pak border during Operation Parakram in 2002. He fell sick and was admitted to 171 MH, Samba, where he received a blood transfusion. In 2014, he fell ill again and was diagnosed with HIV. The appellant believed that the transfusion of virus-infected blood at 171 MH Samba in 2002 was the cause of his condition. Medical boards were held, and it was determined that his disability was attributable to service due to the transfusion of one unit of blood at 171 Military Hospital in 2002. The appellant was discharged from service in 2016 without following due proceedings. He was not provided with an ECHS card within a reasonable time, and Rs. 15,000 were deducted from his dues owed post-retirement for undergoing medical treatment.<\/p>\n

    The Supreme Court noticed certain unmissable facts that cumulatively pointed to the rather casual and superficial attention paid to the entire episode involving blood transfusion:<\/p>\n

      \n
    1. \n

      Nothing was shown on the record to establish that 171 MH was licensed, even as an ad hoc blood bank.<\/p>\n<\/li>\n

    2. \n

      There is no material on record as to whether the nature of equipment available at 171 MH for storing blood and blood products was in accordance with the standards and guidelines prevailing then, in 2002.<\/p>\n<\/li>\n

    3. \n

      During the testimony of witnesses i.e., before the CoI, 171 MH and 166 MH, there was no specific mention about what kind of markers were used to determine whether the transfused blood was in fact safe.<\/p>\n<\/li>\n

    4. \n

      Apart from mentioning of the guidelines by the concerned doctors, there is nothing on record to show that such guidelines were, in fact, adhered to when the testing as well as the transfusion took place.<\/p>\n<\/li>\n

    5. \n

      There is no evidence in the form of deposition by the officer in charge of 166 MH, to rule out the possibility of contaminated blood-which was in fact sent to 171 MH had taken place.<\/p>\n<\/li>\n<\/ol>\n

      The Court noticed that the concerned doctors who were professionals, i.e., either at 171 MH or 166 MH, felt so pressured by the absolute necessity to follow the drills that the safeguards preceding safe transfusion to the appellant appears to have been a given a go by, or dispensed with. Hence, the normal duty of care which would have ordinarily applied and did apply as well, was that at both ends i.e., 166 MH and 171 MH, there should have been no doubt that blood had been filtered and found safe for transfusion. Equally, something in the form of other material on record or in the form of the oral testimony by the medical cadre personnel to show what kind of equipment such as refrigerating unit or other chemical matter to preserve the blood and blood products, even within the safe.<\/p>\n

      “When constituted or read together, all these lapses-which may be seen singly as small or minuscule, add up to one thing: lack of adherence to or breach of the relevant standards of care reasonably expected from a medical establishment. Therefore, whilst pinpointed accountability of one or some individuals is not possible, nevertheless the systemic failure in ensuring a safe transfusion of blood to the appellant, is the only irresistible inference.”<\/p>\n

      Observing that these facts establish medical negligence as the condition in which the appellant found himself, was the direct consequence of the two hospital-establishments and their breach of the standards of care, resulting in the transfusion of the HIV positive infected blood into the appellant, which was the causative factor, the Court held that the IAF and the Indian Army were vicariously liable, jointly and severally, as the former is the appellant’s immediate employer and the latter was the organization controlling and in charge of 166 MH and 177 MH.<\/p>\n

      As a result, the Court held that the appellant was entitled to compensation, calculated at \u00e2\u201a\u00b9 1,54,73,000\/- towards compensation on account of medical negligence of the respondents, who are held liable, for the injury suffered by the appellant. The Court directed that the amount shall be paid to the appellant within six weeks by the IAF, his employer; it is open to the IAF to seek reimbursement, to the extent of half the sum, from the Indian Army. All arrears related to disability pension too shall be disbursed to the appellant within the said six weeks period.<\/p>\n

      Acknowledgements<\/h3>\n

      The Court also acknowledged the efforts of Ms. Meenakshi Arora Senior Advocate, for her valuable assistance; the assistance given by Mr. Vikramjit Banerjee, the ASG; and Ms. Vanshaja Shukla, the amicus who painstakingly compiled the paper-book, and patiently heard the appellant with the aim of addressing all his concerns. The Court directed the Supreme Court Legal Services Committee to bear the honorarium of \u00e2\u201a\u00b9 50,000\/- (Rupees fifty thousand only) to be paid to the amicus Ms. Shukla.<\/p>\n

      Further, acknowledging the appellant’s perseverance and the diligent research and scholarship put in by him, in the relentless quest for justice, the Court directed the respondents to bear the costs quantified at \u00e2\u201a\u00b9 5,00,000\/- (Rupees five lakhs only) within six weeks.<\/p>\n

      [CPL ASHISH KUMAR CHAUHAN (RETD.) v. COMMANDING OFFICER, 2023 SCC OnLine SC 1220<\/a>, decided on 26.09.2023<\/span>]<\/p>\n

      Judgment authored by Justice S Ravindra Bhat<\/span><\/strong><\/p>\n

      Know Thy Judge | Justice S. Ravindra Bhat<\/a><\/p><\/blockquote>\n